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Perils of Public Participation in Parliamentary Process: An active research law reform example

Citation

Baxter, TI, Perils of Public Participation in Parliamentary Process: An active research law reform example, National Graduate Law Conference Abstracts Book, 8-9 July 2010, Australian National University College of Law, pp. 9-10. (2010) [Conference Extract]

Abstract

Growing recognition of the importance of research impact is one driver towards more active research
in pursuit of law reform. Such research is to be encouraged.
Proponents of social change should expect to encounter systemic inertia or resistance, combined with
active pushback from those with interests in maintaining the status quo. This applies to researchers
advocating law reform, even when engaging through formal avenues for policy review.
Positive recommendations from a review process, law reform body or other formalised inquiry may
be a necessary, but not sufficient, condition for law reform. In controversial policy areas, formal
recommendations for law reform inevitably intersect with politics: indeed, successful statutory law
reform ultimately depends upon garnering sufficient reformist political will. At this nexus of policy,
politics and law, interesting issues can arise as to academic independence and ‘objectivity’.
My PhD research examines Australia’s primary environmental statute, the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), specifically its exemptions for Regional Forest
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Agreement (‘RFA’) forestry operations. During my candidature, two significant reviews inquired into the
EPBC Act’s operation:
• a Senate Committee Inquiry; and
• an independent review of the Act, required under s 522A, headed by Dr Allan Hawke.
As flagged in my PhD Preliminary Research Plan (though the former Inquiry was unanticipated), I made
substantive written and oral submissions to both these reviews. Based on my research, I recommended
law reform to amend the EPBC Act so as to:
(a) strengthen it objects by remedying legal weaknesses therein, apparent from judicial reasoning in
Brown v Forestry Tasmania (No 4) [2006] FCA 1729; and
(b) repeal its ss 38–42 and 75(2B) exemptions for RFA forestry operations.
The Senate Committee’s first report adopted my reasoning for (a) as its Recommendation 1, citing
‘Governance expert Mr Tom Baxter’ amongst other submissions.
The Committee made consideration of (b), EPBC Act ss 38–42, the sole subject of its second and final
report. In a dissenting report, three Coalition Senators devoted a paragraph to ‘note the heavy reliance
of the majority report on the evidence of Mr Tom Baxter, and also the failure to disclose that he is a
member of the management committee of both the Environmental Defender’s Office and the National
Parks Association.’ Their term ‘the failure to disclose’ was, in my view, unwarranted.
During recent debate over the proposed resource super profits tax, the shadow finance minister attacked
‘a working paper by a graduate student at North Carolina University’, describing it as ‘the shonkiest
piece of work you’ve ever seen’ .
Researchers need thick skin and should not be deterred by the possibility of political attacks. If your
robust research recommends law reform which would challenge vested interests, anticipate a backlash
which may ‘play the man’ (or woman) instead of the ball, by attacking you rather than the substance of
your arguments. Such attacks may be an indicator of research impact.